Report: As Attorney General Heidi Heitkamp Didn’t Push for Prosecution of Sexual Assault and Abuse in the 1990’s

Sen. Heidi Heitkamp (D-N.D.), who is seeking re-election in November, in Rutland, N.D., Oct. 7, 2018. In North Dakota and other farm states, the partisan divide over the Supreme Court nomination of Brett Kavanaugh has nationalized the fight for the Senate, elating Republicans and worrying Democrats. (Annie Flanagan/Copyright 2018 The New York Times)

North Dakota Sen. Heidi Heitkamp did not push to prosecute individuals responsible for physical and sexual abuse of students when she was the state’s Attorney General, with one accused school employee subsequently sexually assaulting a child.

Heitkamp, who served as the North Dakota’s attorney general between 1992 and 2000, oversaw the North Dakota Bureau of Investigation’s probe between 1993 and 1994 into allegations of abuse at the Wahpeton Indian School (WIS), now known as the Circle of Nations School, a boarding school for troubled Native American students.

The case involved “allegations of abuse, including physical and sexual abuse, inadequate medical care, and other claims of negligence.”

Remember that Senator Heitkamp’s defense for her vote against confirming Brett Kavanaugh to the Supreme Court was her track record on handling sexual assault cases throughout her political career, including her time as Attorney General.

Yet, according to this report, Heitkamp didn’t pursue prosecution of what appears to have been substantiated cases of sexual assault “despite the investigations and the corroboration of the allegations” in the 1990’s.

The defense from the Heitkamp campaign is that the state Attorney General’s office doesn’t have the authority to prosecute those cases:

“As the state’s top law enforcement officer, Heidi took all of the action within her jurisdiction, including recommendations to improve conditions at the school and has continued work for our Native communities in the Senate,” the senator’s press secretary Sean Higgins said.

The campaign also provided a statement from Lyle Witham, a former North Dakota Assistant Attorney General who worked also worked under Heitkamp, who said only State’s Attorneys determine whether to prosecute a crime and the attorney general “does not have the legal authority to press charges in criminal cases.”

Bolstering that argument is the fact that the federal government was involved in this investigation too, and they didn’t prosecute either. But a former DOJ official quoted in the story notes that, even if Heitkamp lacked the statutory authority, she certainly could have called for prosecutions from her bully pulpit as a statewide elected leader:

“You have to bully pulpit as the attorney general in the state. Just like when you’re the attorney general of the United States, you may not necessarily have direct authority to do something, but you can certainly go out and put pressure on local jurisdictions to prosecute cases,” he added.

There’s also some question as to just how restrained by state statute Heitkamp really was:

Josh Helton, a Washington attorney with state criminal experience also dismissed the campaign’s explanation. “It would be very unusual for a state attorney general not to have broad investigative and prosecutorial discretion.”

He pointed to the North Dakota Century Code that allows the state attorney general to “consult with and advise” state attorneys “in matters relating to the duties of their office.” The state AG can also “attend the trial of any party accused of crime and assist in the prosecution when in the attorney general’s judgment the interests of the state require it.”

The two particular laws in the code indicate what Heitkamp could have done, Helton said. “I would say it’s in the best interests of the state” to prosecute an individual who committed crimes against “a historically disadvantaged population, socio-economically disadvantaged children.”

He added Heitkamp could have also used her authority to “persuade” state attorneys to charge the individuals.

At best, Heitkamp accepted uncritically the recommendation of a local prosecutor not to pursue criminal charges. At worst, Heitkamp herself had the power to prosecute and didn’t.

Neither is particularly flattering for a candidate who is now standing on her record in handling sexual assault cases.

This, from the end of the Fox report, is a particularly poignant reminder of the consequences of not prosecuting:

A WIS student also said Blaine Buss, a former dorm matron who was convicted of felony assault for nearly choking his wife to death before his employment at the school, “threw him against his bedroom wall and hit him in the face.” Buss and another staffer, David Keehn, also abused two other students, with one student subsequently diagnosed with a fractured cheekbone, according to the probe by the Bureau of Criminal Investigation.

Just a few months later after the end of the investigations and the decision not to prosecute anyone, Buss went on to sexually assault a child. He charged with two counts of gross sexual imposition against a child under the age of 15 in August 1994 and was subsequently sentenced for both counts.